Matter under the union list not state list: attorney general

Attorney general Mukul Rohtagi has said that Haryana assembly probably felt that it had powers and jurisdiction to pass the Haryana Sikh Gurdwara (Management) Bill, 2014 by virtue of entry 32 in State List of the seventh schedule of the Constitution.

Attorney general Mukul Rohtagi has said that Haryana assembly probably felt that it had powers and jurisdiction to pass the Haryana Sikh Gurdwara (Management) Bill, 2014 by virtue of entry 32 in State List of the seventh schedule of the Constitution. The case, however, does not seem so, says attorney general’s legal advice tendered to the Central government on the contentious legislation.

Rohtagi’s opinion has stoked up the debate on the contentious legislation and is probably a precursor to the Centre approaching the Supreme Court on the issue.

ON ENTRY 32

Entry 32 in the State List reads : “Incorporation, regulation and winding up of corporations, other than those specified in Union list, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; cooperative societies.”

The attorney general said in his advice that since section 72 (3) of the Punjab Reorganisation Act, 1966 creates a fiction that the Board becomes a corporation or deemed to be a corporation, the state legislature seems to feel that it derives powers to pass the Bill by virtue of the entry 32 in State List.

‘SIKH GURDWARAS ACT FALLS WITHIN UNION LIST’

“It is obvious that the erstwhile Board under the Sikhs Gurdwaras Act, 1925 which has become a corporation by virtue of section 72 (3) of the Punjab Reorganisation Act, 1966, has objects which are not confined to one state but are presently spread beyond the state of Punjab to Haryana, Himachal Pradesh and Union territory of Chandigarh.

It is therefore clear that Sikhs Gurdwaras Act, 1925 falls within entry 44 of Union List which reads -incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one state, but not including universities.

On its own terms thus entry 32 of State List is excluded. The state legislature is therefore denuded of any jurisdiction to pass any Bill in respect of which the Parliament has exclusive power to enact law,’’ Rohtagi said.

REORGANISATION ACT

The attorney general in his advice said that Sikh Gurdwaras Act, 1925, was in operation originally in undivided Punjab prior to Independence. After Independence, it has operated in the undivided state of Punjab till the Punjab Reorganisation Act, 1966 as passed by the Parliament. By virtue of Reorganisation Act, 1966, Haryana was carved out and thereafter what is now called state of Himachal Pradesh etc. The gurdwaras covered by the Sikh Gurdwaras Act, 1925, are spread over the entire state of Punjab and are also located in Haryana and Himachal etc.

Rohtagi said that Part III of Sikh Gurdwaras Act, 1925, provides for constitution and composition of the Board which manages the Gurdwaras under its jurisdiction. “By virtue of the Reorganisation Act, the Board had to manage gurdwaras spread over in the other newly carved out state of Haryana. For this reason, Section 72 of Reorganisation Act notes that successor states could also require a body to function and manage gurdwaras now falling in the new state. Section 72 (1) of Reorganisation Act provides that a body corporate functioning in the erstwhile Punjab will also serve the needs of the successor states. Thus, the said body will have jurisdiction to manage gurdwaras beyond the territories of one state. By virtue of this section, the Board will be deemed to be a corporation and it is so specifically provided in Section 72 (3) of Reorganisation Act.”

In other words, Rohtagi said, from 1925 onwards the Board has functioned originally in the state of Punjab and thereafter also in successor states. This was the position till Haryana Vidhan Sabha passed the Bill in question. By virtue of the Bill, it appears, a new Board will be constituted which will manage the gurdwaras in Haryana and the jurisdiction of the Board under the Sikh Gurdwaras Act, 1925 will accordingly be curtailed, the A-G said.

“The law is already in place since 1925 (Sikh Gurdwaras Act, 1925) and there is no justification for Haryana assembly to have passed a law on the same subject matter, taking away the jurisdiction of the Board/ Corporation on the basis of 1925 Act. In fact by virtue of Section 54, the Haryana legislature has declared that the provisions of the Sikh Gurdwaras Act, 1925 shall not apply within the territory of Haryana,’’ he said.